FD24P00632 - [2025] EWHC 1548 (Fam)

Do the circumstances of this child require the protective support of the inherent jurisdiction?

The answer to this requires careful evaluation of the child’s own circumstances as the central priority, alongside a consideration of the wider principles discussed above. It is important to note that, in this context, following the conclusion of submissions, some updated information was forwarded to me concerning K:

“[K] was arrested yesterday, 19 May 2025, on a further arrest warrant that pertains to his removal of his son from France to Nigeria. On 14 May 2025, an advance copy of the warrant was provided by the CPS, who act for the French judicial authority, to Mr [K]’s criminal solicitors.”

The information was far more extensive than set out above, but the detail does not need to be incorporated into this judgment. What is clear, is that K is involved in complex criminal law proceedings which are unlikely to enable him to return to Nigeria for some considerable time. Accordingly, this four-year-old boy finds himself abandoned in a country that remains alien to him, deprived of the protection of his mother and, at least theoretically, his father. Neither parent can come to the aid of their son in anything like the timescales demanded by his circumstances. Nor can there be any confidence in K’s assurance that L is with family members who are safe. The evidence of K’s capacity for dishonesty and manipulation is abundantly displayed within the papers.

In many of the cases considered by the Courts, the child has been abducted by one parent with whom they remain. The added trauma of L’s situation is his isolation. I repeat, he has neither parent to protect him. What also requires repetition is that on the day he was abducted by his father, he had never previously spent a night away from his mother. Some of the authorities focus on the need to identify “peril” for the child when considering whether the parens patriae can be utilised. Whilst for all the reasons I have sought to analyse above, I consider the exercise is a broader evaluative one, I nonetheless have no hesitation at all in describing this child’s circumstances as perilous. To my mind, this is beyond any coherent contrary argument.

What further distinguishes this case from the others considered is that, unusually, there are three countries involved. That is not a feature of any of the cases that I have been referred to. Against this factual backdrop, the risk of cutting across statutory schemes requires to be considered in the context of a third jurisdiction (Nigeria), in which the Nigerian Court has itself plainly been deliberately and dishonestly deceived into making invalid Orders. No other sensible inference can be drawn from the available evidence. The dangers involved in cutting across the scheme adhered to by two signatories to the Hague Convention recede when the child is in neither jurisdiction. To my mind, it is the reciprocity of international comity that requires to be emphasised here. As between England and France, the expert evidence points to the use of the inherent jurisdiction in the English High Court as being most likely to achieve L’s speedy return. The flexibility of the common law appears to afford an enhanced opportunity to protect this child with a dexterity that the civil law jurisdiction alone cannot achieve. The distinction between the two is the pace with which the parens patriae can be deployed. There is of course no guarantee that it would be effective. Perhaps the important point is that the jurisdiction exists, it is not a chimera and it remains there to be harnessed in exceptional circumstances.

I recognise that the fact that Nigeria is not a signatory to the 1980 Hague Convention, does not come close to establishing the exceptionality required. McFarlane LJ in Re N (supra) maintained unswerving focus on the actual circumstances of the child, recognising in that process, that any child involved in a wrongful removal from a parent will inevitably face painful challenges. He identified the paradigm circumstances of an international family where the parents come from different States, have a child for whom they are both responsible but separate and find themselves split between two jurisdictions. L’s circumstances for the reasons that I have set out above, are far removed from that paradigm. McFarlane LJ went so far as to say, on the facts of Re N (supra), that “the difficulties here are that of the mother” and found that the circumstances of the child did “not come near the very exceptional category that might justify the High Court in looking carefully at the question of whether or not it did have jurisdiction to act for her protection”. As one would have expected, McFarlane LJ accepted that the child in that case was “on ordinary welfare grounds, likely to be experiencing loss of contact with her mother”, recognising “that will be to her detriment; but those facts do not come outside the ordinary facts of a case of this nature”.

Whilst the mother’s distress in this case is visceral, I too consider that my focus must be on the child. I do not think that this exercise should be constrained to L’s immediate circumstances. It is important to consider his situation in the context of his experience. I emphasise that this abduction was, in my view, in the most serious class of cases. It involved the brutal severance of L’s loving relationship with his mother and his complete deracination from every aspect of life as he knew and understood it. It involved complex, sophisticated, long-term planning and deception on the Courts, the Contact Centre, the mother and, most importantly, the child himself. It can only have been profoundly emotionally damaging to him. It has also been a protracted separation, even potentially involving L being retraumatised now by the loss of his father. The photographs and school reports, presented by the father, purporting to show L happy at school in Nigeria, are of little, if any, evidential significance against the wider canvass of the evidence. K has no credibility. Indeed, his attempts to portray L as happy, serve only to raise further concern, in my mind, as to his lack of empathy.

L is now living with people whom he can barely know. With no apologies for yet further repetition, I emphasise that he is deprived of his mother, who was his sole carer, all his life, prior to his abduction. He has been in Nigeria for ten months. He is only four years of age. Contact with his mother has been sparce in the extreme, and her telephone number has been blocked. I note too that there were concerns expressed by the Contact Centre in France recording that K regularly turned up late, refused to cooperate with professionals and refused to attend meetings. He was recorded as aggressive with the team and entirely unprepared to engage with the mother. He was also assessed as “not interested” in his son’s routine or “in his habits or the life he could lead at his mother’s house”. In particular, his refusal to consider what are referred to as his son’s “habits and special needs” prior to the overnight contact have even greater resonance now that it has become clear that he was intending to utilise that first overnight stay to abduct his son. For the avoidance of doubt, the phrase “special needs” is a translation from the French script and is not intended to convey any disability, but rather to emphasise L’s individuality. It might have been thought that K would have been particularly interested in learning about his son’s routine and habits in order to help to pacify him in the trauma that he knew must inevitably follow. All of this can deliver no comfort or reassurance as to what provision K has made for his son in Nigeria.

By contrast, the evidence cogently indicates that ND is a warm, empathetic and loving mother with whom her son had a healthy and secure attachment. The following record from the Contact Centre capture the essence of the professional observations:

“[ND] was always punctual and respectful of the agreement and the team. She has always given timely notice of her son's absences due to illness. She takes an active part in the events organised by the crèche to spend special time with her son. As far as [K] is concerned, he is a child with very good motor skills, emotional and psychological development. We feel that he is completely safe, both emotionally and physically, with his mum. She knows how to set limits and a framework for her child when necessary. They know how to pass on important values such as politeness, benevolence, solidarity and mutual aid towards peers and respect for others. (children and adults). [ND] is open to discussion about [K]’s education, care and well-being, and doesn't hesitate to ask questions. It's fair to say that [K] is a child who is fulfilled and happy in his current life.”

I highlight these contrasting features of the parent’s personalities and behaviours only to reveal the light they cast on the extent of the trauma to the child. In addition, to all the other matters considered above, there is compelling evidence that L has been removed from a loving environment into one which is unlikely to have met his emotional needs. The parens patriae has been described as an essentially protective jurisdiction. L’s need for protection, on my assessment of the evidence, is both clear and clamant. Recognising the rarity of circumstances in which the inherent jurisdiction can be invoked, I regard L’s situation as ‘exceptional’.

Having concluded that this is a case in which the inherent jurisdiction should be invoked, I propose to list a further hearing to refine what Declarations are likely to be most effective. I should also like the parties further to explore how best to achieve effective cooperation with the French authorities. I note that there is some authority for the proposition that return to a “third State” is achievable. Such authorities, as there are on this point, all arise in the context of summary return under Article 12 of the 1980 Hague Convention. That of course is not what I am dealing with here. In those cases, the children were also physically present in England at Wales at the time of the hearing, see Re C and Another (Children) (International Centre For Family Law, Policy And Practice Intervening) [2018] UKSC 8, [2018] 1 FLR 861; Re B (A Child) (Abduction: Habitual Residence) [2020] EWCA Civ 1187. In the latter case, the observations of Moylan LJ require to be considered:

… I consider that to confine Art 12 as suggested would be contrary to the primary objective of the Convention which is to protect children from the harmful effects of their abduction. To exclude the remedy of a return to a third state would not protect children in that situation from the harmful effects of abduction … if Art 12 is not interpreted so as to include this power, absent any of the exceptions being established, the court would be mandated to order, ‘shall order’, the child's return to the state of habitual residence at the date of the wrongful removal or retention. … O v O provides an example of when, as Keehan J said, it would have been ‘absurd’, and contrary to the child’s welfare, to have ordered that the child be returned to Australia. As Keehan J said, at [64]: ‘It would be strange indeed if the Convention required steps to be taken which were positively contrary to the interests of the subject children.’

The above strikes me as, at least tangentially, relevant when reflecting that L needs to be returned to his mother’s care in France and that the inherent jurisdiction is welfare-based territory. Though it might be necessary, as a staging post, it would be needlessly burdensome for him to be returned to England. I can see, subject to any further submissions, no reasons why the French authorities would have any objection to a plan to return him directly to his mother on this collaborative basis. Further, I see no reason why the inherent jurisdiction could not indicate that a flight to Paris as opposed to London is in L’s best interests. I should be grateful if the parties could give some further thought to these issues by the next hearing.